K.S. Rakhra, J. - (1.) THIS is an appeal under Section 374(2), Cr. P.C. against the judgment and order dated 17.1.1980 delivered by the learned Sessions Judge, Kheri in Sessions Trial No. 191 of 1979 convicting the Appellants under Section 302 read with Section 34 of I.P.C. and sentencing them to life imprisonment.
(2.) DURING the pendency of the appeal, one of the Appellants, Sheo Kumar son of Hardwari has died and no near relative of the deceased has applied under Section 394, Cr. P.C. to continue the appeal, hence, his appeal abates. Rest of the two Appellants are Baboo and Sarju. The occurrence of this case, is said to have taken place on 16.10.1978 at about 5.00 p.m. near the house of Banwari (P.W. 4). It is said that owing to litigation about abadi and agricultural land, the relations between the deceased, first informant Raghubir (P.W. 1) on the one hand and Hardwari and the Appellants on the other, were strained enough. Earlier in the day, there was exchange of hot words in between the deceased Kali Charan and Hardwari. It was said that it was at about 5.00 p.m. that Kali Charan accompanied by his daughter Phoolmati (P.W. 6) and the first informant was coming back from the fields and had he reached near the house of Banwari (P.W. 4), the three accused named in F.I.R. emerged out of nearby banana plants and started assaulting him with kanta, bhali and lathi. It was said that accused Sheo Kumar was armed with kanta, Baboo with bhali and Sarjoo with lathi. It was alleged that the incident was witnessed, amongst Ors. by Raghubir (P.W. 1), Nand Lal (P.W. 2), Banwari (P.W. 4) and Phoolmati (P.W. 6). Kali Charan died on the spot. Written F.I.R. Ext. Ka -1 was lodged by Raghubir, allegedly on the same date at 11.15 p.m. with police station Kotwali, district Lakhimpur Kheri. It was claimed that the Sub -Inspector, Ram Kumar Sharma (P.W. 7) rushed to the spot in the same night and reached there at about 1.00 a.m. on 17.10.1978. The dead body of Kali Charan was found lying in front of the door of Banwari. Due to non -availability of adequate light, inquest report, etc. could not be prepared in the night and the same was allegedly done on the next morning. Blood stained and simple earth was also collected from the place of occurrence.
(3.) IT was said that the dead body and all the connected papers, were handed over to Constable Mahendra Pratap Singh and village chowkidar at about 8.00 a.m. on 17.10.1978, for being taken to District Headquarter for post -mortem examination. The autopsy on the dead body could be done on 18.10.1978 at about 9.00 a.m. Ante -mortem external and internal injuries found by Dr. S. P. Srivastava at the time of post -mortem examination are reproduced in extenso in the judgment under appeal and need not be repeated again herein this order.;